Important PointThe conviction of an accused solely upon the testimony of a solitary child witness is not sustainable when there is a serious doubt as to whether she knew the accused at all when the occurrence took place.

Headnote:Indian Penal Code, 1860—Sections 302, 460 and 458 rw/s 34—Murder of three persons—Sentence of death—Sustainability—Evidence of child witness who was injured during the incident—Prosecution of appellant and his companion ‘RB’ who absconded and was declared a proclaimed offender —Deceased ’S’ along with his wife and daughter (deceased) resided at the tube well, engaged for cultivation of lands belonging to PW5 and his brothers—He had employed ‘RB’ to look after his cattle at the tube well—Prosecution case that late in the night appellant came to the tube well and ‘RB’ also joined him armed with a hammer—Appellants assaulted deceased ‘J’ and PW6, child witness aged 7 years—In the morning, PW5, father of appellant came to the tube well with tea for his brother ‘R’ and found dead bodies of ‘S’, his daughter ‘J’ and brother ‘R’—PW6 was found injured there—Medical evidence indicated that deceased ‘R’ was attacked with sharp cutting weapons while other two deceased were assaulted with hard and blunt object such as hammer—Delay in recording statement of PW6, sole witness, not explained—PW5 having lodged FIR declared hostile—PW6 had only implicated ‘RB’—However, before the doctor, at the prompting of her father, she implicated appellant—Appellant was not known to her—Whether conviction of appellant was sustainable—(No).
       Held : We entertain a serious doubt whether a girl 7 years old and residing in a different village would have known to whom the tube well belonged. These facts expose a serious lacuna in the prosecution case because there is no evidence to establish beyond reasonable doubt that the sole eye witness PW-6, Billo had ever an opportunity of seeing or knowing the appellant. The mere fact that he happened to be the son of Amar Singh, who was the owner of the tube well, by itself does not establish that the witness had ever seen the appellant before the day of occurrence. This, coupled with the fact that in her first statement PW-6/A recorded on 30th August, 1996, her father PW-4 by putting a leading question to her suggesting the involvement of the appellant, got the appellant implicated creates a serious doubt about the truthfulness of this witness. Thereafter she repeated the involvement of the appellant in her subsequent two statements. If there was any evidence to prove that PW-6, Billo, who was then aged about 7 years had ever an opportunity of seeing the appellant and identifying him, her evidence could have been acted upon. Unfortunately, there is no such evidence on record. She was persuaded to name the appellant by her father PW-4 who suggested to her the involvement of the appellant. We, therefore, entertain serious doubt as to whether PW-6, Billo had ever seen the appellant so as to be able to name him as one of the assailants. Moreover, she had come to the tube well only in the evening preceding the night of occurrence. There is no evidence to establish that the appellant had come to the tube well that evening. (Para 29)
       The explanation furnished by PW-6 five years after the occurrence, that she knew the appellant because he happened to be the son of Amar Singh at whose tube well her grandparents resided, is unacceptable particularly, in view of the fact that there is no evidence to establish that she had ever earlier seen the appellant and in none of the three statements made by her earlier the name of Amar Singh is mentioned. The delay in examining her in the course of investigation also creates a serious doubt in the absence of any explanation for her late examination after three days, when admittedly she was the sole eye witness who was also injured in the course of the occurrence. We are, therefore, of the view that though she may have witnessed the occurrence, she did not know the appellant by name as she had no opportunity of knowing or seeing him earlier, and that she has involved the appellant at the instance of her father, who was the person who suggested the involvement of the appellant when her statement Ex. PW-6/A was being recorded. There is yet another aspect of the matter which has remained unexplained. PW-6 has not mentioned a word as to how Rabi Singh was killed. Admittedly, he was sleeping in the motor room and just outside that room PW-6 was sleeping with Jamila (deceased). Apart from the fact that there is not an iota of evidence as to who assaulted Rabi Singh, there appears to be no reason why the appellant should commit the murder of his own uncle with whom his family was on cordial terms. In fact his father Amar Singh, PW-5, had come in the morning to give tea to his brother Rabi Singh. There is nothing on record to suggest that the appellant had any animus against his own uncle. Nor is there any evidence on record to suggest any possible motive for the appellant to commit such a heinous crime. We should not be understood to say that it is necessary to prove motive for the commission of an offence even when there is satisfactory direct evidence in proof thereof. In this case since we doubt the truthfulness of PW-6 so far as the involvement of the appellant is concerned, but there is evidence to support the involvement of another person namely, Raju Bhaiya, who has absconded, the absence of motive acquires significance because it is possible that the offence may have been committed by Raju Bhaiya along with some other person or persons. (Paras 30 and 31)
       The conviction of the appellant, therefore, depends solely upon the testimony of PW-6, Billo. We entertain a serious doubt as to whether she knew the appellant at all when the occurrence took place. There is no evidence to prove that she was known to the appellant. The name of the appellant appears to have been introduced by her father, PW-4, who is not an eye witness. We, therefore, do not consider it safe to sustain the conviction of the appellant on the sole testimony of the child witness PW-6, Billo. The appellant is entitled to the benefit of doubt. (Para 32)

Judgement Key Points

Facts

(!) Appellant convicted under Sections 302, 460, 458 read with Section 34 IPC for murder of three persons and sentenced to death by Sessions Judge, affirmed by High Court.
[1000265490001] Incident occurred on night of 29-30 August 1996 at tube well; three deceased (Sahu, his daughter Jamila @ Guddo, Rabi Singh - appellant's uncle); sole eyewitness PW-6 Billo (aged 7 years) injured; co-accused Raju Bhaiya absconded.
[1000265490002] Deceased Sahu resided at tube well of PW-5 Amar Singh (appellant's father) and brothers for cultivation; Raju Bhaiya employed to tend cattle; PW-6 left at tube well evening prior to incident to accompany Jamila.
[1000265490003] Prosecution case: Appellant arrived on motorcycle, joined by Raju with hammer; assaulted Sahu, Jamila; attempted to strangle and assault PW-6 who became unconscious.
[1000265490004] PW-5 found bodies in morning, PW-6 injured; PW-6 stated to PW-5 en route to hospital that Raju Bhaiya and motorcyclist killed her 'Nana' and 'Masi' with hammer.
[1000265490005] PW-5 lodged FIR mentioning PW-6's statement naming Raju Bhaiya and motorcyclist; scene suggested theft; blood-stained hammer recovered.
[1000265490006] Investigating Officer prepared inquest reports, site plan, recovered blood-stained earth and hammer; post-mortem conducted.
[1000265490007] Rabi Singh's body in motor room; PW-6 silent on his assault.
[1000265490008] Post-mortem on Rabi Singh: incised wounds, fractures from sharp cutting weapons.
[1000265490009] Post-mortem on Sahu: bruises, rib fractures consistent with blunt object like hammer.
[1000265490010] Post-mortem on Jamila: bruises, rib/sternum fractures consistent with blunt object.
[1000265490011] Medical evidence confirmed homicidal deaths; Rabi Singh by sharp weapon, others by blunt object.
[1000265490012] PW-6's first statement (Ex PW-6/A) recorded 30.8.1996 by doctor: named Raju Bhaiya; father's leading question prompted nod naming appellant Jagga.
[1000265490013] PW-6's statement to IO on 3.9.1996 (Ext DA/1): named appellant on motorcycle with Raju; detailed assaults.
[1000265490014] PW-6's statement to Magistrate on 6.9.1996 (Ext PW-6/B): named Jagga and Raju (Bhaiya); claimed prior knowledge as he visited tube well daily.
[1000265490016] Defence: PW-6 from different village, unknown to appellant; no prior opportunity to know/see him; delay in statements allowed tutoring; no TIP.
[1000265490017] Trial Court relied on PW-6 as truthful child witness despite delays/leading question; found her prior knowledge via tube well visits.
[1000265490022] PW-4 (PW-6's father): narrated events, claimed PW-6 named both assailants to doctor; cross-exam exposed contradictions/omissions.
[1000265490025] PW-5 (FIR lodged) declared hostile; not eyewitness.
[1000265490026] PW-6 deposed 5 years later: claimed knew appellant as son of tube well owner Amar Singh.

Ratio

[1000265490028] Serious doubt if 7-year-old PW-6 from different village knew tube well owner or had seen appellant prior; mere family relation insufficient for identification.
[1000265490028] Father's leading question in first statement (Ex PW-6/A) prompted naming appellant, casting doubt on truthfulness; repetition in later statements unreliable without prior acquaintance evidence.
[1000265490029] Unexplained 3-day delay in IO statement despite PW-6 conscious/injured sole eyewitness; opportunity for tutoring; Trial Court reasoning on shock erroneous.
[1000265490029] No evidence PW-6 saw appellant before incident evening; her 5-year-later explanation of knowing him via tube well ownership unacceptable, absent prior mentions or proof.
[1000265490030] PW-6 silent on Rabi Singh's killing despite proximity; no motive/animus against uncle shown; absence significant with doubts on identification but confirmed role of absconding Raju.
[1000265490031] No link of appellant to recovered motorcycle/watch; conviction solely on solitary child witness unsafe without proof she knew/identified accused.
(!) Appellant acquitted on benefit of doubt; conviction unsustainable on doubtful sole child testimony lacking identification opportunity.

Judgment

B.P. Singh, J.—This appeal by special leave has been preferred by Jagjit Singh @ Jagga who was tried by the Sessions Judge, Fatehgarh Sahib charged of the offences under Sections 302, 460 and 458 read with Section 34 IPC. The learned Sessions Judge by his judgment and order dated 31.03.2003 found him guilty of all the three charges and sentenced him to death under Section 302/34 IPC, while imposing the sentence of 10 years rigorous imprisonment and a fine of Rs. 5,000/- in default to undergo two years rigorous imprisonment under both Sections 458 and 460 IPC. The appellant herein preferred Criminal Appeal No. 369 DB/2003 before the High Court of Punjab and Haryana which was heard along with Murder Reference 2 of 2003 for confirmation of the death sentence. The High Court dismissed the Criminal Appeal preferred by the appellant, and accepting the murder reference, affirmed the sentence of death.

2. The prosecution had alleged the commission of the aforesaid offences by the appellant Jagjit Singh @ Jagga as well as by his companion Raju Bhaiya @ Gobind Sharma who absconded and was ultimately declared a proclaimed offender. The occurrence giving rise to the instant appeal is said to have occurred on the night intervening the 29th and 30th August, 1996 in which three persons were killed and the sole eye witness Billo, PW-6 a child aged about seven years was injured. The persons who were alleged to have been killed by the appellant and his companion were Sahu and his daughter Jamila @ Guddo, apart from Rabi Singh, an uncle of the appellant and brother of the first informant Amar Singh, PW-5, who is the father of the appellant.

3. The case of the prosecution is that Amar Singh, PW-5 and his brothers Labh Singh and Rabi Singh (deceased) jointly cultivated lands belonging to them in village Khamanon Kamli. For that purpose they had installed a tube well on their land which had a room where the motor was installed and just outside that room was a ‘Chhan’ (a thatched verandah). Sahu (deceased) along with his wife and daughter Jamila @ Guddo (deceased) resided at the tube well. He was engaged for cultivation of the lands belonging to Amar Singh and his brothers. Rabi Singh (deceased), used to reside at the tube well along with Sahu and his family members aforesaid. Sahu had kept his cattle at the tube well and for that purpose he had employed Raju Bhaiya @ Gobind Sharma (since absconding) who used to graze the cattle and look after them. He had been in their employment for about 6 to 7 months before the occurrence and also resided with them at the tube well. Only 5 or 6 days before the occurrence Raju Bhaiya had taken leave to go to Ludhiana on the pretext that he had to collect money from someone. A couple of days before the incident the wife of Sahu (deceased) namely, Jeewani had gone to see her daughter Hazaran at Jalandhar. While going to Jalandhar she had requested her son-in-law Bashir PW-4 a resident of Village Madera to take care of her daughter Jamila @ Guddo in her absence. According to prosecution on the evening of 29.08.1996 Bashir PW-4 along with his wife and children visited the tube well where Sahu resided in village Khamanon Kamli. They were together for sometime and thereafter he and his family members returned to their village leaving behind Billo, who was only 7 years old, to give company to Guddo. That is how Billo PW-6 was at the tube well along with Sahu and Jamila @ Guddo (deceased) on the night of occurrence.

4. The case of the prosecution is that late in the night the appellant came to the tube well on a motor-cycle and Raju Bahiya also joined him armed with a hammer. The appellant caught hold of Sahu who was sleeping on a cot and threw him on the ground. Raju assaulted him on his chest with the hammer. Seeing the occurrence Jamila @ Guddo (deceased) caught hold of Billo, PW-6 and took her towards the cattle shed. However, the appellants caught hold of Jamila @ Guddo. Raju attacked her with his hammer from b

Click Here to Read the rest of this document